Schoolcraft v. The City Of New York et al

Filing 482

LETTER addressed to Judge Robert W. Sweet from Alan H. Scheiner dated 08/18/2015 re: An Application to Require the Plaintiff to Identify A Single Police Practices Expert to Testify at Trial. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Timothy Caughey(Tax Id. 885374 Individually), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York.(Scheiner, Alan)

ZACHARY W. CARTER
Corporation Counsel

THE CITY OF NEW YORK

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

ALAN H. SCHEINER
Senior Counsel
phone: [phone]
fax: [phone]
[e-mail]

August 18, 2015
BY ECF & EMAIL
([e-mail])
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. The City of New York, et al.
10-CV-6005 (RWS)
Your Honor:
I am a Senior Counsel in the office of Zachary W. Carter, Corporation Counsel of the
City of New York, assigned to represent City defendants in the above-referenced matter. I write
to respectfully request that the Court order plaintiff to proffer a single police practices expert to
testify at trial in this matter, rather than the two redundant experts that plaintiff has listed in his
proposed witness list. The requested order is necessary to avoid undue burden and prejudice
upon the City defendants in preparing their motions in limine.
In his draft witness list provided in connection with the JPTO, plaintiff identified as
witnesses both John Eterno and Eli Silverman. See Defendants’ Proposed JPTO, Docket No.
477, at 13, n. 10. Both experts are authors of a single expert report purporting to concern police
practices, and both would testify on the very same subject matter. See Plaintiff’s Exhibit 11 in
Opposition to Motion for Summary Judgment, Docket No. 397-1. Testimony from both
witnesses would therefore be cumulative and inadmissible for that reason alone. See Williams v.
County of Orange, 2005 U.S. Dist. LEXIS 46051, *20-21 (S.D.N.Y. Dec. 13, 2005) (citing USA
v. Walker, 910 F. Supp. 861, 863 (S.D.N.Y. 1995) and AUSA Life Insurance Co. v. Dwyer, 899
F. Supp. 1200, 1203 (S.D.N.Y. 1995) (granting motion to exclude expert as duplicative of the
same parties’ other expert); Levinson v. Westport Nat'l Bank, 2013 U.S. Dist. LEXIS 71208, *18
(D. Conn. May 20, 2013) (granting motion to exclude testimony by more than one expert on the
same subject-matter). Exclusion of one of the two experts is inevitable here, because the two
experts attested to the exact same opinions in the exact same report.
By email to plaintiff’s counsel on August 6, 2015, the City defendants asked plaintiff to
state which of the two experts would be offered to testify. That request was reiterated on August

14, 2015. Plaintiff has not responded to that request. It would be unfair and unduly burdensome
to require City defendants to move to preclude both experts, Eterno and Silverman, when both
would never be permitted to testify. Plaintiff would thereby burden the City defendants with
making unnecessary arguments. Accordingly, the City defendants respectfully request that
plaintiff be ordered choose one of the two experts, Eterno or Silverman, to be proffered at trial,
so that the City defendants may prepare a motion in limine directed only at the appropriate
expert.
Thank you for your consideration in this matter.
Respectfully submitted,
/s/
Alan H. Scheiner
Senior Counsel
Special Federal Litigation Division
cc:

All counsel by ECF.

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